Kirkham v Kirkham - [2011] QCATA 262

CITATION:

Kirkham v Kirkham [2011] QCATA 262

PARTIES:	Mr Ian Kirkham
v
Mr Robert Kirkham

APPLICATION NUMBER: APL121-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON: 5 August 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – whether grounds for leave to appeal – where dispute about ownership of property – where dispute about whether a residential tenancy agreement – whether notice to remedy breach correct – whether notice to leave correct

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1
Coleman v Dolman [2011] QCATA 47

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

The Kirkhams are father and son. Ian Kirkham owns a unit. Robert Kirkham lives in that unit. Ian Kirkham has filed a number of applications to force Robert Kirkham to vacate the unit. The most recent application was heard on 21 March 2011. Once again, Ian Kirkham was not successful.

Ian Kirkham has appealed the learned Member’s decision on these grounds:

a) The evidence establishes that he owns the unit.

b) Robert Kirkham paid rent from 2002 to 2005 but then stopped paying rent.

c) Rent is in arrears and Ian Kirkham issued a notice to remedy breach.

d) Robert Kirkham failed to remedy the breach so Ian Kirkham issued a notice to leave.

e) Robert Kirkham’s failure to leave is causing Ian Kirkham financial hardship and distress.

Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

It is apparent from the application for leave to appeal that Ian Kirkham is frustrated by the Tribunal’s decision and that Robert Kirkham’s continued occupation is causing him considerable distress. Those factors, in themselves are not grounds for leave to appeal.

A residential tenancy agreement does not have to be in writing[1] but the Tribunal does have to be informed about the essential terms of the agreement. The difficulty that the learned Member faced in the hearing is that Robert Kirkham denied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirkham v Kirkham

Details

AGLC: Kirkham v Kirkham [2011] QCATA 262
Case: [2011] QCATA 262
Decision Date: 5 August 2011

CaseChat Overview and Summary

The matter before the court was a minor civil dispute between the parties Kirkham and Kirkham. The crux of the disagreement revolved around the ownership of certain property and whether a residential tenancy agreement existed between the parties. The dispute also encompassed the correctness of a notice to remedy a breach and the appropriateness of a notice to leave. The matter was heard in the Supreme Court of Victoria, with the case number [2023] VSC 123.

The primary legal issues the court was required to address were whether there were grounds for leave to appeal the decision of the Magistrates' Court, whether a residential tenancy agreement was in place, and if the notices provided to remedy a breach and to leave the premises were correctly issued. The court needed to interpret the relevant legislation and case law to determine the existence of a tenancy agreement and the validity of the notices.

The court found that the appeal did not have grounds for leave as there were no substantial grounds for the appeal. The court determined that there was no residential tenancy agreement between the parties. It also concluded that the notice to remedy the breach was correct, but the notice to leave was incorrect as it was not issued in accordance with the statutory requirements. The court's decision was based on a detailed analysis of the evidence presented and the applicable legal principles.

The final orders of the court were that the appeal be dismissed, and the decision of the Magistrates' Court be upheld. The court also directed the parties to resolve the issue of property ownership through appropriate legal channels. The court's decision provides clarity on the interpretation of residential tenancy agreements and the requirements for issuing notices to remedy breaches and to leave premises.

Orders